ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS FROM CAUSE NO. 95-CR-3244-H IN THE 347TH DISTRICT COURT NUECES COUNTY Per curiam. ORDER
This is an application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071.
In February 1996, a jury convicted Applicant of capital murder for intentionally causing the death of I.J., a five-year-old child. See TEX. PENAL CODE § 19.03(a)(8). The record shows that, at the time of the offense, I.J. and his mother, Tabatha Thompson, were living in the apartment of his father, Isaac Robinson. In the early morning hours of September 19, 1995, a mutual acquaintance of Robinson and Applicant caused two cars belonging to Applicant's stepbrother to be set on fire. Applicant believed that Robinson had known of the plan to torch the vehicles and he felt angry and betrayed that Robinson had not warned him of the plan. Applicant retrieved a .357 Magnum pistol and went to Robinson's apartment. Applicant broke into the darkened apartment, walked to Robinson's bedroom, and opened fire. Robinson was not at home at the time, but Thompson and I.J. were there in the bed. Applicant's gunshots wounded Thompson very badly and killed I.J.
The jury found Applicant guilty of capital murder as alleged in the indictment. See TEX. PENAL CODE § 19.03(a)(8). The jury answered the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, and the trial court, accordingly, set punishment at death. Applicant filed his present writ application pursuant to Article 11.071 on December 31, 1997. The trial court never acted on this application and it was never properly forwarded to this Court. Meanwhile, we affirmed Applicant's conviction on direct appeal but vacated his death sentence and remanded the case for a new punishment hearing. Hatten v. State, No. AP-72,302, slip op. at *17 (Tex. Crim. App. April 29, 1998) (not designated for publication).
Applicant was retried on punishment in December 1998 and he again received a death sentence. The Court affirmed the 1998 sentence on direct appeal and denied habeas relief on the application Applicant filed concerning the new sentence. Hatten v. State, No. AP-72,302 (Tex. Crim. App. June 20, 2001) (not designated for publication); Ex parte Hatten, No. WR-51,110-01 (Tex. Crim. App. Jan. 9, 2002) (not designated for publication).
In August 2003, this Court received a document titled the "State's Motion to Dismiss Original Application as Moot." The Court granted the State's motion without order on the same day it was received and dismissed the 1997 application.
Following the conclusion of federal habeas proceedings, Applicant's execution was set for October 15, 2014. On October 13, 2014, the Court issued an order staying the execution, reinstating the 1997 writ application on its own motion, and remanding the matter to the trial court for it to consider allegations in the writ affecting the guilt phase of Applicant's trial.
In his application, Applicant raises six claims. The trial court held a live evidentiary hearing, issued findings of fact and conclusions of law, and recommended that we deny relief.
We have reviewed the record regarding Applicant's allegations. Claim One is procedurally barred because Applicant raised the same claim in his original direct appeal and we rejected it. See Ex parte Hood, 304 S.W.3d 397, 402 n.21 (Tex. Crim. App. 2010) ("[T]his Court does not re-review claims in a habeas corpus application that have already been raised and rejected on direct appeal.").
In Claim Two, Applicant alleges that his trial counsel were constitutionally ineffective because they: failed to establish a minimal level of contact and communication with him; failed to investigate the case's background and circumstances; did not use certain experts; did not object to a certain prosecutorial argument; did not object when the prosecutor asked leading questions on direct examination of certain witnesses; failed to adequately cross-examine certain witnesses; and failed to present an effective opening and closing argument. However, Applicant fails to meet his burden under Strickland v. Washington, 466 U.S. 668 (1984), to show by a preponderance of the evidence that his counsel's representation fell below an objective standard of reasonableness and that there was a reasonable probability that the result of the proceedings would have been different but for counsel's deficient performance. See Ex parte Overton, 444 S.W.3d 632, 640 (Tex. Crim. App. 2014) (citing Strickland, 466 U.S. at 688).
Applicant also asserts that counsel were ineffective because they failed to discuss with him the ramifications of his psychiatric consultation with Dr. Raul Capitaine. However, Capitaine's evaluation of Applicant was for the punishment phase only. Therefore, our grant of a new punishment hearing rendered this ineffective assistance allegation moot. --------
The part of Claim Three pertaining to the guilt phase is procedurally barred because it either could have been raised on direct appeal (but was not) or it was raised and previously rejected by this Court. See Hood, 304 S.W.3d at 402 n.21; Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App. 1998) ("It is well-settled that the writ of habeas corpus should not be used to litigate matters which should have been raised on direct appeal.") (internal quotation marks omitted).
With the exception of paragraphs I through III of its findings of fact and paragraphs I through III of its conclusions of law (concerning the concepts of abandonment, laches, and collateral estoppel), we adopt the trial court's findings and conclusions regarding the guilt phase claims because the record supports them. Based upon the trial court's findings and conclusions that we adopt and our own review, we deny relief.
Part of Claim Three and Claims Four, Five, and Six concern the punishment phase of Applicant's 1996 trial. Our grant of a punishment re-hearing rendered these claims moot. Therefore they are dismissed.
IT IS SO ORDERED THIS THE 12th DAY OF FEBRUARY, 2020. Do Not Publish